The recent death of George H.W Bush made me reflect on the now-oldest living president, Jimmy Carter. The 39th president, as a president, is not held in high regard by nearly anyone; the GOP remembers him as a weakling who ranted about “malaise” en route to getting routed by Ronald Reagan in 1980, while today’s Democrats see him as either a weirdly conservative holdover of the pre-LBJ Democratic Party or the first “neoliberal” president.
Carter is a political orphan, and almost everything about his rise to power and time in office are strange in retrospect. First, consider the electoral map of the 1976 election:
No Democrat before or since has won with this weird coalition of states. Carter traded big states in the Northeast and Midwest with Ford, winning Ohio, Pennsylvania, and New York but losing Illinois, Michigan, and New Jersey. Shut out in the West except for Hawaii, he held on by sweeping the old Solid South except for Virginia. He remains the last Democratic presidential nominee to win Texas, Alabama, Mississippi, or South Carolina.
Carter’s relatively narrow victory stemmed from the lingering stench of Watergate that followed Ford, as well as Carter’s innovative stance as an outsider, a Southern governor who could clean up Washington. Before Carter, the most recent governor to ascend to the presidency was FDR, and the three most recent presidents had been consummate insiders with decades-long careers in federal politics. After Carter, three of the next four presidents were governors who ran as outsiders. Ronald Reagan and George W. Bush benefited immensely from the evangelical vote that Carter, perhaps the last sincere Christian to hold the office, activated; Bush 43 in particular won two narrow Carter-esque victories thanks to incredible strength throughout the South.
As a president, Carter was remarkably blunt. His famous cardigan address, delivered by a fireplace, includes him smirking dismissively at people who doubted his view that America needed to get better at energy conservation. His crisis of confidence speech is a bit of truth-telling that no president had since even tried to replicate. People praise Donald Trump for “telling it like it is,” which he doesn’t, but Carter really did and was crucified for it. Pundits and politicians still act like they idolize Carterist bluntness, but they only like the idea of it and would never take the risks Carter himself did when discussing energy or public policy solo on national tv.
Carter entered office at the apex of the Democratic Party’s post watergate dominance. However, he struggled to govern, famously pissing off Ted Kennedy with his austere inauguration party and clashing with progressives who pushed legislation like Humphrey-Hawkins, a bill that would have guaranteed employment to every American adult.
His few accomplishments were nevertheless notable. He deregulated airlines, trucking, and railroads, the consequences of which we are still living with (this is what leftist critics refer to when they call Carter a neoliberal shill), since Reagan and every subsequent president took a similar approach to industry. He appointed Federal Reserve chairman Paul Volcker, who jacked up interest rates, hurting workers and winning the admiration of Ronald Reagan, who retained him in the 1980s. The New Deal era ended during the Carter presidency.
In foreign policy, he established the Carter Doctrine, which set the table for decades of US intervention in the Middle East, especially under the presidents Bush. He ramped up military spending to pressure the USSR, after attacking Ford from the right in 1976 for his “no Soviet domination of Eastern Europe” gaffe during a debate. Military spending has been spiraling upward ever since.
Carter’s bluntness, political limitations, and challenges with issues in the world at large (e.g., the energy crisis) doomed his re-election prospects. But his influence lives on, as every president since, with the slight exception of Obama, has taken a similar approach to military aggression abroad and deregulatory policy at home. The incoherence of the Trump presidency may finally signal the beginning of the end for the current era of presidential politics that began in the late 1970s, but until a progressive Democrat takes office and takes the country on a distinctly different course the contours of the Carter era are still with us.
He had run for president before, but had found only a limited constituency. On his second try, he lost in Iowa and looked like he might struggle to live up to the hype, before rebounding in New Hampshire and then winning almost every contest en route to the nomination. Despite this dominance, his electoral prospects looked shaky, with polls showing a regular deficit to his Democratic challenger, a distant but effective political operator whose every misstep incited wall-to-wall media coverage. But after a successful convention, he caught up and won with a surprisingly large margin in the Electoral College. In office, he nominated to the US Supreme Court a credibly accused sexual harasser, who narrowly won confirmation. He cultivated close relations with the totalitarian regime in Saudi Arabia despite its undeniable contributions to the destabilization of the Middle East. Partially exposed to a blockbuster White House scandal involving illegal collusion with a foreign power, he wielded the presidential parody power aggressively to let multiple coconspirators off the hook. I’m talking, of course, about George H.W. Bush.
The narrative attending the death of George H.W. Bush (hereafter “Bush 41”) is predictable – he ruled a Kindler Gentler America, as a Moderate Sensible Republican who adhered to The Norms. It’s all bullshit.
Always, always be skeptical of any framing, especially a political one, of the past as a safer place. For example, I find myself doing this sometimes about the late 2000s and early 2010s only to recall that same-sex marriage was illegal throughout the period. The Trump presidency has made countless pundits think that every moment up until Jan. 20, 2017 was a golden age of civility and political stability, with the Bush dynasty a pivotal part of the old guard.
As my opening paragraph shows, Bush 41 governed in many ways like a more polite Donald Trump, and the similarities between go further, to him being credibly accused of sexual assault by multiple women. I mean, his last ever tweet was a note of congratulations to Maine senator Susan Collins on her decisive vote to confirm sexual harasser Brett Kavanaugh to the Supreme Court.
Much will be made of Bush 41 signing into law various bills such as the Americans With Disabilities Act and important updates to environmental and civil rights laws. Left out of those discussions will be any acknowledgment of the majorities Democrats held in both houses of Congress for the entirety of Bush’s term, and how Democratic representatives and senators masterminded these initiatives and would have overridden a veto.
If you want to celebrate the Bush 41 years, presaged by a hateful campaign filled with race-baiting proto-Trump ads like the infamous “Willie Horton” spot (created in part by the man who would go on to found a little PAC called Citizens United), best to stick to foreign policy, where he oversaw a relatively graceful end to the Cold War. That’s it (oh and his nomination of David Souter, who turned out to be a secret liberal).
I’ve already seen political scientists talk about how Bush 41 was the best president of their lifetimes, which seems like respect for the recently deceased more than anything. To me, he did far less to benefit the average American than Barack Obama or Bill Clinton. I will grant that he was much better than his idiotic son or the GOP’s cartoonishly criminal Nixon and Trump administrations, and superior even to his more lionized predecessor. He’s the best elected GOP president of the past 50 years, but the bar is ridiculously low.
When Donald Trump was elected president, many on both the left and the right presented him as a break with the status quo of American conservatism. Trump, they argued, represented a descent into a new, more vulgar ideology that was far removed from normal right-wing discourse and practice.
There were, and continue to be, countless paeans to how previous GOP presidents, mostly Bush 43 and Reagan, were “different” in some capacity, along with hackneyed attempts to separate “honorable” Republicans like Paul Ryan from the dark underbelly of the Republican Party that Trump helped mainstream. Bush 43 giving Michelle Obama a piece of candy during John McCain’s funeral, while an incredibly low-stakes act, represents this fiction of a discrete, distinctively pre-Trump GOP perfectly, i.e. remember when the Norms Were Good and conservatives Deserved Respect Even If You Didn’t Agree With Them.
In reality, there’s an incredible continuity in the Republican Party, not just between Trump and Bush but all the way back at least to the reactionaries of the 1960s. Trump is a totally normal Republican politican.
Start with Brett Kavanaugh. Trump elevated him to the Supreme Court, but Bush 43 made him a judge in the first place. Kavanaugh also worked in the Bush White House, corresponding with the likes of John Yoo on torture. Before that, he worked for Ken Starr investigating various Clinton scandals, alongside Rod Rosenstein and Alex Azar – both future Trump Cabinet appointees.
Starr was of course Solictor General under Bush 41, who like Trump nominated to the Supreme Court a manifestly unfit judge credibly accused of sexual asault and then chose to stick by that nomination despite significant backlash. Like Trump, Bush 41 was accused of harassment by multile women, yet persists for many as a paragon of a different, gentler kind of GOP president. That’s a weird formulation for the man who employed Lee Atwater, mastermind of the Trumpesque race-baiting Willie Horton ads of 1988.
Bush 41 was Reagan’s VP for 8 years. Reagan is positively remembered even by some Democratic politicians, despite numerous similarities with Trump beyond just their shared background in entertainment. Reagan referred to black men as “strapping young bucks” and perpetuated the racialized welfare queen myth. He associated himself with segregationist Strom Thurmond and launched his 1980 campaign in Philadelphia, Missisippi, the site of a KKK lynching of volunteers during the Freedom Summer of 1964.
Reagan was very conservative, even for the time – he challenged Gerald Ford from the right in 1976 and almost won, which is amazing in retrospect since Ford himself had incredible bona fides as a conservative. He helped stanch the damage to the GOP from Watergate by pardoning Nixon, plus he employed two pivotal figures who would go on to do immense damage in the Bush 43 administration – Dick Cheney and Donald Rumsfeld, who served as WH Chief of Staff and Secretary of Defense, respectively, in the Ford administration.
Nixon’s similarities to Trump are almost too obvious to discuss. A paranoid yet clever politician constantly in legal and ethical trouble, he precipitated one of the biggest crises in the history of American governance. Alongside Ford, he also campaigned heartily for Barry Goldwater in 1964.
The Goldwater presidential campaign is really where modern American conservatism coalesceded into a coherent movement. Goldwater captured the rabid racists who were once stalwarts of the Southern Democratic Party, in the process breaking the Solid South to win overwhelming victories in Mississippi, Alabama, and most of the Deep South. The KKK loved him. He opposed the various iterations of the Civil Rights Act as oversteps of big government, yet wholeheartedly supported aid to Rhodesia/Zimbabwe in support of its ruling white nationalists – as if the question of whether “big government” is good is simply a matter of which race it’s hurting.
Brett Kavanaugh’s elevation to the Supreme Court is just one bridge on the continuous highway of conservatism from Goldwater to Trump. There’s no golden age of an honest, ethical, and sane Republican Party, clearly removed from Trumpsim, to look back on at almost any point after the Eisenwhoer Administration. “Noble” or “moderate” Repubclians won’t save us, as Susan Collins’ ‘yes’ vote for Kavanaugh demonstrates.
Go back in time with me to the 1860s. The Fourteenth Amendement to the U.S. Constitution has just been drafted, containing the following text:
“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”
This is one of the most important sentences in American history. It affords to anyone born on U.S. soil the full rights of U.S. citizenship – or does it?
Conservatives including Jeff Sessions, Ann Coulter, and Michael Anton (who wrote an odious op-ed for The Washington Post on this very topic) have long crusaded against this clause of the Fourteenth Amendment, despite its clear and obvious meaning and intent. The amendment was first meant to ensure that descendants of slaves were Americans, but its power extends far beyond that cause, as it simplifies the entire project of citzenship without requiring the complex and often controversial de sanguis (by blood) systems of many other countries. It makes assimilation easy.
So why does the hard right rail against its original intent? Because they think it’s a giveaway to “illegal immigrants” who can enter the country, have children, and be certain those children are Americans.
You’ll notice I put quotes around “illegal immigrants.” That’s because, in the 1860s, when the 14th Amendment was ratified, there was no such thing as an “illegal immigration.” It’s a modern concept and would have been incomprehensible in 19th century America, where virtually every ancestor of any person calling himself/herself an American arrived via a method that we would, going by latter-day legislation, in theory call “illegal” but don’t because, well, then everyone’s perceived legitimacy in the country would be at stake.
So an originalist reader of the 14th Amendment would clearly have to say that, nope, you can’t interpret it as something meant to exclude “illegal immigrants” and their families from the rights of citizenship, since no such distinction between legal/illegal migration existed at the time. You’ll be shocked to learn that conservative originalists – i.e., people in the legal community who purport to interpret the Constitution in the context of its original meaning at the time of enactment – don’t hold this position.
They’re not just hypocrites – they’re subscribers to an incoherent worldview. Originalism is often contrasted with “living constitutionalism,” the practice of reading the Constitution as a living document whose meaning changes with time and requires new readings aligned with the culture at-large. the implication is oftne that while living constitutionalists (read: liberals) are “legislating from the bench” as “judicial activists,” conservative originalists are simply following the letter of the law. This is absurd, and not just because of the hypothetical 14th Amendment issue I raised. There are so many cases in which this comes through:
Perhaps the most infamous, the 2nd Amendment contains (indeed, starts with!) the phrase “A well-regulated militia, being necessary…” Gun ownership is framed right then and there in the context of military service, not an individual right to own as many assault rifles (which didn’t even exist in the 1700s) as possible. Yet the latter has become the bog-standard position of conservative “originalists.”
A refresher; this amendment says:
“The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.”
And yet it so often is, by voter ID laws and other bullshit that is often explicitly targeted at black voters. Original intent would preclude any such barriers, yet conservative “originalists” are invariably the ones pushing policies in this realm, from statehouses to the judiciary.
The endless conservative assautls on the Voting Right Act demonstrates the bad faith of originalists, who are happy to ignore both the intent of the Reconstruction Amendments (13th-15th) and the will of the Congress that enacted the voting-specific legislation (as explicitly autohrized by the text of those amendments) to instead read arcane theories about the “sovereign dignity” of the states into a Constitution that doesn’t contain them. Shelby County v. Holder is the relevant case here.
Don’t fall for originalist jargon from the likes of Neil Gorsuch or pending Supreme Court nominee Brett Kavanaugh. They’re conservative reactionaries opposed to equality, and that’s that.
The retirement of U.S. Supreme Court Associate Justice Anthony Kennedy under a GOP president was one of the most predictable crises of recent years, but one that nevertheless seems to have triggered, almost overnight, a sea-change in how the left talks about the judiciary. Sure, there have been the occasional pleas for “moderate” nominees from President Donald Trump. Yet even milquetoast progressive legal commentators such as Ian Millhiser of Think Progress – whose greatest hits include calling Antonin Scalia a “great scholar” – have now called for court packing. There has been a notable shift in the Overton Window about the Supreme court.
“Court packing” has a negative connotation – it stirs up images of strongmen trying to work the system by rigging its membership in their favor. It shouldn’t, though; from almost day one of the United States, court packing has been a germane concern for the other two branches of government, and for wholly practical reasons. Court packing is an American as apple pie, and it’s needed more than ever.
The Supreme Court: A cure worse than the disease
The case that created the Supreme Court as we know it was about court packing. Marbury v. Madison concerned the last-ditch effort of outgoing President John Adams to fill up the judiciary with Federalist judges before Thomas Jefferson took office. Jefferson’s inauguration marked the first time the Federalists would not have control of the executive branch after 12 years of George Washington plus John Adams, and they were scared – like any American conservative party reliquinshing its control of governmnet, they saw the unaccountable, life-appointed judiciary as the rearguard of its power.
The Supreme Court’s ruling in Marbury v. Madison established the precedent of judicial review, which permits the judiciary to take another look at executive and legislative actions. Nowhere in the U.S. Constitution is the Supreme Court afforded the power to strike down laws or even to deterine their constitutionality; though that right is hinted at in some of the Federalist Papers, it was primarily engineered by Chief Justice John Marshall in Marbury v. Madison to resolve one of the many intractable problems arising out of the separation of powers fundamental to the U.S. political system: How should a new administration execute the commissions of judges already nominated and approved by members of the opposing party?
Of its many flaws, the U.S. Constitution’s lack of foresight about the rise of political parties is one of the most significant. It’s amazing in retrospect that the “geniuses” behind it didn’t think that, say, having the Senate and the presidency divided between fiercely opposed factions might grind the government to a halt. Even though the Supreme Court was almost certainly not intended to be a super-legislature, it became that in part because the uniquely inefficient design of the American government often leaves no clear resolution to partisan disputes.
Following Marbury v. Madison, the Supreme Court took on an activist role it has since never let go of. It has weighed in on every issue from the Fugitive Slave Act (“it’s good, basically,” to paraphrase the court led by Jackson appointee Roger Taney) to Japanese interment (“also good,” to summarize the Harlan Stone court’s opinion in Korematsu v. United States), almost always on the wrong side morally. Why the consistently awful opinions?
Because the Supreme Court is a fundamentally conservative institution. It’s the least accountable branch of the federal government due to lifetime tenure, plus it’s consistently staffed by the bourgeoise since many presidents have preferred highly credentialed lawyers or previous politicians as nominees. That’s a recipe for dominance by conservative white men, who can issue whatever opinions they like with virtually no fear of consequences.
The Supreme Court is, as such, a horrible cure to the disease of divided government: Whenever party disputes grind the participatory political system to a halt, the court steps in to give the reactionary perspective of the upper classes. Its conservatism is the product of not only of its insularity from democratic society, but also because of its links to two anti-democratic instiutions: The Senate and the Electoral College, whose power it reinforces.
These institutions over-represent rural white populations and have helped sustain conservatism in the U.S. despite immense social change. For most of its history, the U.S. has lacked anything resembling a liberal political party, in part because of the constraints created by the Senate and Electoral College. Accordingly, elections often go to conservative politicians who nominate and approve conservative judges.
The first somewhat liberal party to emerge was the Republican Party of the 1860s, which was founded with the goal of abolishing slavery. However, it quickly ran up against the obstacle of an entrenched judiciary appointed by multiple Democratic and Whig presidents. In response, Abraham Lincoln temporarily packed the court to ensure a favorable majority at a time when more than half the country was committed to the cause of abolition via victory over the Confederacy. He took a step to ensure the judiciary was better aligned with the popular will and moment.
Following the presidency of Rutherford Hayes, the country sunk back into almost compelte conservatism, with a neoconfederate Democratic Party and a business-friendly Republican Party. The courts of this era paved the way for Lochnerism, the anti-regulatory almost libertarian doctrine that prevailed until the 1930s, when President Franklin Roosevelt pushed back against judicial hostility to the New Deal. The Supreme Court finally relented after FDR drew up a plan to pack it with Democrats, who by this time were becoming much more progressive.
How the Supreme Court became one of the highest-stakes battlegrounds
Most presidents have won the popular vote at least once, and the Senate used to be slightly more equitable in the days before a handful of states like California, Texas, Florida, and New York (with a combined population larger than Germany’s) came to dominate the population distribution, although this was offset by the fact that until the 1910s it wasn’t even directly elected. Over time, though, changes in political coalitions and demographics have enabled small pluralities or even minorities of the electorate to elect the politicans who in turn appoint life-tenured judges who basically sit on an unaccountable super-legislature.
That’s a disaster for democracy. The real turning point came in 1968. From the 1950s until then, the 20 consecutive years of Democratic rule under FDR and Harry Truman meant the courts were stacked with liberal appointees, who in turn oversaw an anomalous streak of progressive rulings such as Brown v. Board of Education and Miranda v. Arizona. The traditionally conservative tide of the judiciary had ebbed, and you better believe that America’s reactionaries noticed. When it came time for Lyndon Johnson to replace Earl Warren, Senate Republicans filibustered Abe Fortas’ nomination as Chief Justice, leaving both him and Warren on the court to eventually be replaced by Richard Nixon, who had won 43.4 percent of the vote and promptly went on to nominate 4 Supreme Court justices including future Chief Justice William Rehnquist.
Since 1969, there has not been a single day when a majority of the court’s justices had been appointed by Democratic presidents. The Supreme Court has remained a vanguard of conservative power even as Democrats have come to dominate presidential elections. With the ongoing polarization of the two major parties, the conditions have long been right for a court that is even more divorced from public opinion that it normally is, since even a narrow electoral victory -– like Nixon in 1968, Bush in 2000, and Trump in 2016 – can now lead to a complete partisan transformation of the judiciary. The stakes for every presidential election have been dramatically raised as the Supreme Court became less accountable, more activist (since Congress now neglects many of its traditional responsibilities in areas like immigration and trade), and – ironically – more burnished with the veneer of respectability, since many across the political spectrum see judges as uniquely credible and nonpartisan, despite all evidence to the contrary. Here’s what Thomas Jefferson had to say about judges after Marbury v. Madison [emphasis mine]:
“You seem to consider the judges as the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men, and not more so. They have, with others, the same passions for party, for power, and the privilege of their corps…. Their power [is] the more dangerous as they are in office for life, and not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all the departments co-equal and co-sovereign within themselves.”
The Supreme Court has also held on to a semblance of legitimacy because its median vote for the past 50 years has been a country club-style Republican, whether Sandra Day O’Connor or Anthony Kennedy, who while basically conservative has been willing to vote with liberals in enough cases to keep both sides of the political spectrum somewhat content. Court-oriented liberal activism on issues such as LGBTQ+ rights has flourished in the period as Congress has stagnated and overall governmental gridlock has worsened.
With Kennedy’s retirement, that careful balance between liberals, conservatives, and a handful of nominal swing votes is gone. We’re now on the verge of a president who won a lower percentage of the popular vote than Michael Dukakis in 1988 having appointed 2 of the 9 justices, while 2 more were appointed by George W. Bush, who also lost the popular vote. Moreover, these judges are all documented ideologues from the Federalist Society, a professional group of conservative lawyers committed to something called originalism.
Originalism purports to be interpreting the Constitution “strictly,” which in practice means “conservatively.” Why anyone in 2018 would want to interpret literally and narrowly a document containing a clause saying slaves are 3/5ths of a person is beyond me, but the right wing as well as large chunks of the media seem to think that this is a more legitimate approach to the law than the “living constituionalism” of liberal judges who account for practical changes in society since the 18th century. Originalism has given us Clarence Thomas, Samuel Alito, and Neil Gorsuch, among may others.
A court filled by such individuals will be hostile to progressive legislation, often bending over backward to find tortured reasons to weaken or overturn it. For example, Chief Justice John Roberts’ opinion in Shelby County v. Holder, the case nullifying large parts of the Voting Rights Act of 1965, is basically a rewrite of the logic in the Dred Scott v. Sanford decision that was so hated even in the 1860s that it inspired multiple constitutonal amendments (the 13th-15th). The Supreme Court’s origins as a racist institution are alive and well as long as the Federalist Society is dictating terms to GOP presidents.
Why court packing is the answer
Court packing by a Democratic administration in conjunction with a Demoratic Congress could expand the Supreme Court to any size, canceling out the appointments by minority-rule presidents. It’s the only way to reign in an institution that has become increasingly removed from democracy and accountability. If it results in the decline of judicial review as a tool, even better – despite a handful of good activist decisions (like Obergefell v. Hodges), the Supreme Court should not be deciding which laws are and aren’t good enough, often in contravention of the public.
A Supreme Court whose size can be changed at any time is one that is far more answerable to Congress, without any need for the impractical solution of impeachment, the nominal check on judges in the Constitution. I don’t think the Constitution is all that great as either a political or moral document, and its failings are a major reason why we’re in this situation of having to pray that octogenarian judges don’t retire and get replaced by 40something neoconfederates. Short of amending the Constitution, court packing is the best solution and should absolutely be on the table for the next Democratic government.